by Aggarwals Associates | Mar 28, 2023 | Criminal Lawyers, Divorce Lawyer, General
Article 142 of the Indian Constitution grants the Supreme Court the power to pass any order necessary for doing “complete justice” in any case or matter pending before it. This provision is often seen as a powerful tool in the hands of the judiciary to provide justice in situations where the law is inadequate or insufficient. However, the use of this provision has also been a subject of much debate, with some arguing that it undermines the principle of separation of powers and can lead to judicial overreach. In this blog, we will discuss the need for judicial restraint while exercising the powers granted under Article 142. The bare language of Article 142 is as follows: “ Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
- Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself”
The principle of separation of powers is a cornerstone of democracy, which ensures that no branch of the government becomes too powerful. The legislature makes laws, the executive implements them, and the judiciary interprets and applies them. However, in some cases, the law may not be able to provide a remedy for a particular situation. In such cases, the judiciary may have to step in and provide a solution using its inherent powers. Article 142 grants the Supreme Court the power to do just that. However, this power must be exercised with caution and restraint.
One of the main arguments against the use of Article 142 is that it can lead to judicial overreach. The Supreme Court is not meant to legislate or make policy decisions. Its role is to interpret and apply the law. When it uses Article 142 to pass orders that go beyond what is provided in the law, it can be seen as encroaching on the powers of the legislature and the executive. This can be particularly problematic when the orders passed under Article 142 have far-reaching implications that affect the rights and freedoms of citizens.
Another concern with the use of Article 142 is that it can undermine the rule of law. The rule of law requires that all actions of the government, including the judiciary, are subject to the law. When the Supreme Court passes orders under Article 142 that are not based on any legal provisions, it can be seen as arbitrary and unfair. This can erode public trust in the judiciary and the rule of law.
Therefore, it is essential that the Supreme Court exercises restraint while using the powers granted under Article 142. The court must ensure that its orders are based on established legal principles and are not arbitrary or unfair. It should also ensure that its orders do not encroach on the powers of the other branches of the government. This requires a careful balancing of the interests of justice with the principles of democracy and the rule of law.
In conclusion, Article 142 is a necessary provision that allows the Supreme Court to provide justice in situations where the law is inadequate or insufficient. However, its use must be tempered with caution and restraint. The Supreme Court must ensure that its orders are based on established legal principles and do not undermine the principles of democracy and the rule of law. By doing so, it can uphold its role as the guardian of the Constitution and the protector of the rights and freedoms of citizens.
–Surbhi Singla
Associate at Aggarwals & Asssociates, Mohali
by Aggarwals Associates | Mar 13, 2023 | General
The Supreme Court recently said that the Members of the House have to comply with the directions of the whip and if any section of MLA within the political party refuses to do so or goes against the direction, then the MLA will attract disqualification. However, the whip is not applicable in the case of presidential election.
The Whip in Parliament:
The concept of the whip in India is inherited from the U.K. In India, the whip is an official of the political party responsible for ensuring that members of the party vote in a particular way on a bill or issue in parliament. The whip’s role is to persuade and convince members of the party to vote in favour of the party’s position. Whips are also responsible for ensuring that party members attend parliament and vote on important bills.
The whip’s authority in parliament is based on the principle of party discipline, which requires all members of the party to vote in a particular way on a bill or issue. Party discipline is essential for maintaining a stable government and ensuring that the party’s legislative agenda is implemented. In India’s parliamentary system, where coalition governments are common, whips play a vital role in ensuring that the coalition partners vote together on important bills.
The Role of the Chief Whip:
In India, each political party has a chief whip, who is responsible for overseeing the party’s members in parliament. The chief whip’s role is to communicate the party’s position on a particular issue to its members and persuade them to vote accordingly. The chief whip also ensures that party members attend parliament and vote on important bills.
The chief whip is also responsible for coordinating with the other parties’ whips to ensure that there is no conflict between the parties on a particular issue. The chief whip plays a crucial role in maintaining party discipline and ensuring that the party’s legislative agenda is implemented.
The Whip System in India:
The whip system in India is governed by the Rules of Procedure and Conduct of Business in Lok Sabha and Rajya Sabha. The rules specify that any member of a political party who violates the party’s whip will be liable to disciplinary action by the party.
The rules also specify that a whip can be issued for any bill, motion, resolution, or any other matter on which the party wishes to convey its view to its members. The whip can be issued in three forms – a one-line whip, a two-line whip, or a three-line whip – depending on the importance of the issue and the party’s stance on it.
Conclusion:
The whip plays a crucial role in maintaining party discipline and ensuring that the party’s legislative agenda is implemented in parliament. In India’s parliamentary system, where coalition governments are common, whips play an even more critical role in ensuring that the coalition partners vote together on important bills. While the whip system has its critics who argue that it restricts the freedom of individual MPs, it remains an essential tool for ensuring stable government and effective legislative action in parliament.
by Aggarwals Associates | Feb 2, 2023 | General
- PAN Card as a common identifier: PAN Card is to be identified as a common identifier for all digi-system as specified in government agencies.
- MSME:
- Revamped credit guarantee to all the MSMEs that will be applicable from April 1, 2023, with 9000 Crores in the corpus.
- Collateral-free credit of 2 lakh crore to the companies registered under MSME.
- Cost of credit is decreased by about 1 per cent for the companies registered under MSME.
- Employment or Job: Schemes have been launched for employment generation.
- Pradhan Mantri Kausal Vikas Yojana 4.0
- 30 Skill India International Centres will be set up across different states. The centre is established for the skill enhancement of youth for International opportunities.
- Green Hydrogen Mission: The amount of 19700 crores is granted to the National Green Hydrogen Mission. The mission aims to reach 5 million tonnes in hydrogen production capacity by 2030.
- Defence: The budget for the defence department is increased by 5.94 lakhs from 5.25 lakhs. Moreover, 1.62 lakhs crore is granted for the capital expenditure for the purchase of weapons or other essential purchases. The budget for border road organisation is increased by 5000 Crore, whereas Indian Air Force is alloted with 57,137.09 Crore, Indian navy with 52,804 crore , Army with 37,241 crore and the outlay of 23,264 is granted to the defence research development organisation
- Railway: The total outlay of 2.4 lakh crore is granted for boosting affordable regional connectivity and logistics of cargo freights.
- 157 new Nursing colleges have to be established in the core areas.
- National Digital Library for children and adolescents.
- 3 centres for excellence of AI (Artifical Intelligence). The objectives of establishing these centres are to make AI for India and to make AI work for India.
- 100 labs for developing apps using 5G services.
- The outlay of 7000 crores for Phase- 3 e courts
- Central Processing centre is established for ensuring faster response in a company filing.
- Capital Investment: The outlay of 10 crores to capital investment for job creation and crowd in private investment.
- Aviation: Fifty additional airports, helipads, water air drones, and advanced landing grounds have to be established in the upcoming years for the upliftment purpose.
Surbhi Singla
Associate at Aggarwals & Associates, S.A.S Nagar, Mohali
by Aggarwals Associates | Feb 2, 2023 | General
The union budget is presented by the Finance Minster every year on the 1st of February. The budget is presented on the 1st of February to materialise all the necessary things from the new financial year. The union budget is presented by Nirmala Sitharaman in 2023 in virtual mode (Bhahi Khata) form.
The key highlights or crux from union budget 2023 are as follows:
- Schemes and extensions in the budget: Various schemes are launched and in some schemes, the validity and investments are increased.
- The deposit for the monthly income scheme is doubled to 9 lakhs and 15 lakhs in the case of the joint account.
- Mahilla Samman Saving Scheme: The scheme is launched for the upliftment of women and girls in society. According to the scheme, an amount of up to 2 lakhs can be invested in the name of women or girls for the period of 2 years. The interest rate for which is 7.5 per cent and also the partial withdrawal is available for the users.
- Senior Citizen Saving Scheme: The investment limit for the scheme has been increased to 30 lakhs from 15 lakhs.
- Dekho Apna Desh Initiative: The initiative aims to establish 50 new desti unit malls in the state for the promotion of tourism.
- PM Awas Yojana: The budget for this yojana is enhanced by 66% to over 79000 Crore.
- Vivad se Vishwas 2 Scheme- The scheme is launched for easy settlement of commercial disputes bet
- New Tax slab: According to the new tax regime there is a rebate in tax for income up to 7 lahks. In simpler terms, taxpayers whose annual income is up to 7 lakhs are exempted from tax.
- The new tax slabs are as follows:
Up to 3 lakh- 0% tax
3-6 lakhs- 5% tax
6-9 lakhs- 10% tax
9-12 lakhs- 15% tax
12-15 lakhs- 20% tax
More than 15 lakhs – 30% tax
Standard deductions for salaried and individual taxpayers.
The surcharge rate reduced from 37% to 25%.
No exemption on proceeds of insurance policies with premiums more than Rs. 5 lakhs.
by Aggarwals Associates | Jan 30, 2023 | Criminal Lawyers, General
The definition of sexual harassment is well-defined in the POSH Act, It states that “sexual harassment is any unwelcome sexual behavior, whether directly expressed or implied, and includes the case of physical contacts and advances, or sexual favour demanded or requested, or making remarks with sexual overtones, or showing pornography or other offensive material, or acting in an unwelcome sexual manner through physical, verbal, or non-verbal means.
What are the different provisions under PoSh Act?
Conciliation: Conciliation plays an important role in dispute resolution as it is always gives win- win solutions to the parties. It is an effective form of ADR ( Alternative Dispute Resolution) mechanism in which a third party, conciliator helps in resolving the dispute by giving multiple solutions to both of the parties. The matter related to the POSH can be resolved by the method of conciliation but it cannot be resolved on monetary terms.
Interim Relief: The victim can get one of the following interim reliefs in the POSH Act:
Relocation for any of them.
There is a provision of 3 months’ leave for the aggrieved women.
Confidentiality Report
Punishment for false complaint:
The Act consists of provisions for the false complaint to prevent bogus allegations and to protect the interest of employees. The provisions of false complaints are very essential to protect the innocents. The person filing false complaint will be entitled to one of the following punishments:
A written apology letter by the complainant.
The promotion of such a person can be withheld by the company.
The pay rise or increment can be withheld by the company.
Termination of services, etc.
View of Legislation on false complaint related to sexual harrasment at work place
The High Court of Delhi imposed a hefty fine of Rs. 50000 on the petitioner
for filing a false case against the respondent in the case named Anita Suresh
vs Union of India & Others, P (C) 5114/2015. This clearly states that the
legislation is strict for false and misleading complaints.
The legal procedure to file a complaint of sexual harassment?
The victim can complain to the internal committee in the company and then to the complaint committee. Also, the aggrieved person can claim under various other provisions provided under Indian legislation such as sec 354 of IPC (Indian Penal Code)
It is pertinent to mention here that the time period for filing a complaint is three months but can be further extended to three months depending on circumstances. Moreover, if the victim herself is not able to complain she can complain through the appropriate person as provided under the legislation.
What are the different loopholes in the POSH Act?
Gender Biased: The provisions stated in the Act is specifically for female employee that depicts that only women are subjected to sexual harassment. This is the major drawback of the legislation that it is gender biased.
No protection for the informal sector: The legislation does not have specific provisions for the informal sector, this shows that the legislation is biased toward the informal sector as the complaint by this sector is not taken into consideration.
The legislation deals with all the basic provisions such as definition, punishment, and appropriate channels to complain. Also the Acts contains provisions for false complaints that is utmost necessary in this legislation. Every employer should add the provisions for sexual harrasment to ensure healthy environment at work place in their employee manual and also to take initiative for arranging awareness campaign at fixed intervals of time.
Surbhi Singla
Associate at Aggarwals & Associates, S.A.S Nagar, Mohali
by Aggarwals Associates | Jan 24, 2023 | Criminal Lawyers, General, Labour Law Lawyers, MSME, Parliament
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013(herein after referred as PoSH Act) is the first and the only legislation in Indian laws that deal specifically with sexual harassment of Women at the workplace. Though, India has several criminal and civil provisions that are related to sexual harassment and also have prescribed punishment for the same under section 354 of the Indian Penal Code (hereinafter referred to as IPC) which speaks about outraging the modesty of a woman. The defined punishment of which is 1 year of imprisonment or fine or can be both depends on the discretion of the court.
What is Sexual harassment?
The definition of sexual harassment is well-defined in the POSH Act, It states that “sexual harassment is any unwelcome sexual behaviour, whether directly expressed or implied, and includes the case of physical contacts and advances, or sexual favour demanded or requested, or making remarks with sexual overtones, or showing pornography or other offensive material, or acting in an unwelcome sexual manner through physical, verbal, or non-verbal means.
Who is Employee under the PoSH Act?
Section 2(f) “employee” defines any person employed at a workplace on a regular, transitory, ad – hoc basis, or daily salary basis, whether directly or via an agency, including a contractor, for any task, with or without the knowledge of the principal employer, whether for remuneration or not, or working voluntarily or otherwise, whether the terms of employment are express or implied, and entails a co-worker, probationer, a contract worker, trainee.
What are the different objectives of the PoSH Act?
PoSH is an act to protect, prevent and prohibit sexual harassment of women at workplace. The main objective of the PoSH Act is to provide a safe and healthy workplace to each and every employee of any organisation. In addition to this it is essential to give a dignified life to all their female employee. The sexual harassment not only means physical torture but it also includes passing sexual comments, bullying, body shaming, taunting and other minor things by the colleagues and higher authorities.
What are the two main committees constituted under PoSH Act?
The two main committees constituted under PoSH Act for preventing the sexual harassment at work place: Internal and Local Committees.
Internal Committee: It is mandatory for every organisation to set up an internal committee if the company is equipped with more than 10 or more employees. The committee is to be formed under the provisions of the PoSH Act and the quorum of members is to be decided according to the provisions of the legislation. The non-compliance of which will attract a fine of Rs.50,000.
Local committee: A local committee is established in each district for dealing with the matter of sexual harassment in the workplace. Before registering the complaint in the local committee, one should go to the internal committee. The committee is established under Section 5 of the PoSH Act by repealing &the Amendment Act of 2016.
Powers of the committee: With the introduction of two different committees, powers are also specified in the Act. The committee can
- Summon and interrogate the accused person under the oath.
- Can ask for the discovery of documents.
- Any other things that are essential for the case.
The legislation deals with all the basic provisions such as definition, punishment, and appropriate channels to complain for any sort of physical and mental harassment faced by any women at their workplaces and it also assures that the women stays safe.
–Surbhi Singla
Associate at Aggarwals& Associates, S.A.S, Nagar Mohali.
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